HRC Blog

The Naz Foundation, the original petitioner in the constitutional challenge to Section 377 of the Indian Penal Code, on Monday filed a curative petition in the Supreme Court challenging its deciision on December 11, 2013 to make same-sex relations criminal again in India.

Section 377, which criminalizes same-sex relations between adults (consenting or not), was ruled “unconstitutional” in a landmark ruling in 2009 by the Delhi High Court. With the Supreme Court’s verdict last December scrapping the Delhi High Court decision, consensual same-sex intercourse again became a criminal act punishable with up to a life sentence. Even though prosecutions under Section 377 have been rare, the law has been used over the past few decades to harass LGBTQ people and hinder healthcare for men who have sex with men and the transgender communities. This section of the Indian Penal Code was introduced in 1861 by the British Colonial powers in India, and similar sections exist in the penal codes of other Commonwealth nations across the world, including Singapore, Jamaica, Uganda, Nigeria, and Kenya.

The curative petition is a “last resort” at a change in judgment, generally taken up when there seems to be a consensus about a gross violation of human dignity or rights due to a judgment. In response to the Indian Supreme Court’s December judgment, a review petition was filed, which was instantly dismissed. Unlike a review petition, the curative petition is heard by a panel of judges who did not pass the judgment in question.

The petition underscores the idea that “no party should suffer because of the mistake of the Court,” pointing towards the millions of LGBTQ people who live in India that are now deemed criminals in the eyes of the law. To identify as gay or lesbian isn’t criminal in India, though it isn’t quite accepted in society. However, it is now illegal to act on it.

The petition has sought an oral hearing of the case and a stay on the December decision for now. There is no set timeline for the curative petition hearing. If the petition fails, the only way to amend the penal code is legislatively.

Even though many political parties are making decriminalization of consensual same-sex relations a part of their manifesto for the upcoming elections in April to May 2014, the leading political party is in support of keeping same-sex relations criminal.

Update: In a landmark ruling for the LGBT community on April 15, the Indian Supreme Court earlier today granted full legal recognition to transgender individuals as a “third gender.” This encompasses all male-to-female, female-to-male, intersex, hijras, and other social minorities of transgender individuals that are part of South Asian societies. On further reading of the judgment it is also clear that discrimination on the basis of gender identity or sexual orientation is now illegal across India.